J&K High Court Directs UOI To Pay 2.5 Crores As Rental Compensation To Displaced Persons Whose Land Was 'Illegally' Occupied By Indian Army

A bench of Justice Wasim Sadiq Nargal observed,

“The state in exercise of its power of “Eminent Domain‟ may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and therefore, reasonable compensation must be paid. In a democratic polity governed by the rule of law, the Union of India could not have deprived the petitioners of their property without the sanction of law and it is obligatory on part of the Union to comply with the procedure for acquisition, requisition or any other permissible statutory mode”.

The case involved 24 DP families who were allotted land in Jammu in 1953 under Government Order 578-C for their rehabilitation after being uprooted from Pakistan-occupied Kashmir during the partition. However, in 1978, the Army occupied their land without following due process or paying any compensation.

The petitioners argued that their land ownership was undisputed, with mutations duly attested in their favour. They claimed that the Army's occupation was illegal and a violation of their constitutional right to property.

The Union of India, on the other hand, contended that the land belonged to the Ex-State Forces and was transferred to the Army under an agreement in 1956. They further argued that the DPs' allotments were invalid.

Upon meticulously dissecting the legal arguments Justice Nargal reviewed the land records which revealed that the allotments to the DPs predated the 1956 agreement and were duly attested through mutations, establishing their legal ownership.

The court highlighted that once land was allotted to DPs for rehabilitation, it could not be taken away without due process, either through requisition with payment of rentals or through acquisition with compensation.

Citing Rule 5 & 15-A of the Allotment of Land To Displaced Persons Rules, 1954 the bench observed that the land allotted to a displaced person cannot be distributed and in case where an evacuee returns and claims restoration of land which may have been allotted, the provisions of section 14-A of the Evacuees' (Administration of Property) Act, Samvat 2006 may be invoked.

“From the aforesaid legal position, it is clear that once the land is allocated to the petitioners, it cannot be distributed and the defence authorities, thus, have illegally dispossessed the petitioners‟ families from their allocated land”, the court maintained.

Delving into the constitutional aspects, the bench asserted that the property right, protected under Article 300-A of the Constitution of India, is a fundamental human right and no one can be deprived of their property without following due process of law. Even in the exercise of eminent domain, reasonable compensation must be paid, the court underscored.

“The right to property is now considered to be not only a constitutional or statutory right but falls within the realm of human rights. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment etc and over the years, human rights have gained a multifaceted dimension”, Justice Nargal emphasised.

In view of the same the court criticized the Union of India's actions as illegal and unconstitutional, observing that the petitioners were dispossessed from their land way back in the year 1978 without legal sanction or following the due process of law and yet, no compensation has been paid to the petitioners in spite of the fact that the same has been assessed by the State Government.

The court concluded that the Union of India must pay the assessed rental compensation of 2.49 crores for the period 01.01.1978 to 31.03.2009 within one month. Additionally, the respondents were directed to assess and pay the rental compensation from 31.03.2009 till date under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013.

The court explicitly stated that interest at 6% per annum would be payable if the compensation was not paid within the stipulated timeframe.

Case Title: S. Saroop Singh Vs Union of India through Defence Secretary.

Citation: 2023 LiveLaw (JKL) 318

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